Wilson v. Bramblett

• Decision Date: 06 June 1962
• Docket Number: No. 6928,6928
• Citation: 91 Ariz. 284,371 P.2d 1014
• Parties: W. Francis WILSON, Appellant, v. J. Newton BRAMBLETT and Elizabeth Bramblett, his wife, Frank J. Stefanich and Effie M. Stefanich, his wife, Stuart M. White and Helen K. White, his wife, James G. Huebner, a widower, Tim Mazzoni and Gladys Mazzoni, his wife, and F. M. Hammack and Niva M. Hammack, his wife, as individuals and as members of The Kipling Syndicate, Co-partnership, and The Kipling Syndicate, Co-partnership, Appellees. . In Division
• Court: Arizona Supreme Court

Page 1014

371 P.2d 1014

91 Ariz. 284

W. Francis WILSON, Appellant, v. J. Newton BRAMBLETT and Elizabeth Bramblett, his wife, Frank J. Stefanich and Effie M. Stefanich, his wife, Stuart M. White and Helen K. White, his wife, James G. Huebner, a widower, Tim Mazzoni and Gladys Mazzoni, his wife, and F. M. Hammack and Niva M. Hammack, his wife, as individuals and as members of The Kipling Syndicate, Co-partnership, and The Kipling Syndicate, Co-partnership, Appellees.

No. 6928.

Supreme Court of Arizona. In Division.

June 6, 1962.

Rehearing Denied July 5, 1962.

Richard A. Wilson, Phoenix, and Kent A. Blake, Phoenix, for appellant.

Langmade & Sullivan, Phoenix, and Lawrence W. Young, Freson, Cal., for appellees.

M. T. PHELPS, Justice (retired).

This is an action brought by plaintiff-appellant in this state against defendants-appellees to recover the sum of $9,645.54 together with interest, for legal services rendered over a period of years. The parties will hereinafter be designated as plaintiff and defendants. The defendants were members of a limited partnership with headquarters in Fresno, California, operating under the name of The Kipling Syndicate.

The complaint in the instant case contains two counts: one based on a stated account and the second on an open account for legal services and for money advanced to defendants.

Plaintiff had previously brought an action in Fresno, California, against said defendants based upon the same transaction but predicated his action upon an original and a copy of a promissory note signed by two members of the partnership. Later the signature of the Kipling Syndicate by C. M. S. Kipling was added to the copy. Kipling and Ernest K. Bramblett and Lois Bramblett, his wife, were not served with process in the California case and neither appeared or answered the complaint.

In that case the trial court found that the original note was conditionally delivered and was to have no force or effect until signed by J. Newton Bramblett who refused to sign it, and that the copy was materially altered and C. M. S. Kipling had no authority to execute the note for the copartnership and consequently held the note invalid and of no force or effect. Judgment was therefore entered for defendants and plaintiff appealed to the California District Court of Appeals.

The District Court of California in that case entitled Wilson v. Bramblett, 151 Cal.App.2d 369, 311 P.2d 22 (1957), said:

'Many of the several defenses made by respondents and found by the court as to why the note was unenforceable against these defendants appear to be tenable. Without discussing them, we conclude that respondents' liability on the original note and copy thereof sued upon was conditional depending upon the signature of Bramblett or ratification by the individuals signing and was not duly executed and delivered, within the meaning of that term. This conclusion is sufficiently supported by the evidence and the law even though appellant retained a copy of the note. It therefore becomes unnecessary to determine the other claimed defenses.' (Emphasis supplied.) 311 P.2d at 25.

The Court further said:

'* * * It has been definitely held that where a note is given under an agreement that it is not to become binding until signed by another person, the failure to obtain said additional signature precludes a recovery as between the original parties or transferees who have notice of the agreement, unless the obtaining of the additional signature is wrongfully prevented by the maker. (Citing cases.)' 311 P.2d at 25.

The Court thereupon proceeded to affirm the judgment of the trial court upon the sole ground as shown above that 'the note was not duly executed or delivered within the meaning of the terms.' (Emphasis supplied.)

We have quoted at length from the California decision in order to show that such decision is based exclusively upon the fact that the delivery of the original note was conditional depending upon the additional signature thereto of Bramblett or ratification by the individuals signing and was not executed and delivered within the meaning of that term. With this view we wholeheartedly agree.

The Arizona trial court in the instant case expressly found all of the allegations of fact in the complaint were true and therefore found all of the issues in favor of plaintiff W. Francis Wilson and against the defendants C. M. S. Kipling and Ernest K. Bramblett and Lois Bramblett, his wife, because they were not served in the California case with process and did not appear or answer in that case, and entered judgment against them. However, the court found that the California judgment was res judicata as to all defendants appearing and answering in that case and entered judgment in their favor and against the plaintiff upon the ground of res judicata alone. From this portion of the judgment plaintiff has appealed to this court.

We therefore have presented for our consideration the sole question of whether the California judgment is res judicata as to the defendants there and consequently whether plaintiff may maintain the instant cause of action.

It is, of course, urged by defendants here that it is, and by plaintiff that it is not res judicata.

The California court was presented first with the question of whether the note sued upon was a valid contract since one of the defenses was that the note was delivered conditionally for the purpose of procuring the signature of J. Newton Bramblett, another member of the copartnership. The court found the note to be invalid because the signature of J. Newton Bramblett to said note was never procured and the original note never returned to plaintiff. In other words, it found the original note had never been delivered to plaintiff and that the copy retained by plaintiff had been materially altered by adding the signature of the Kipling Syndicate by C. M. S. Kipling and that Kipling had no authority to sign the name of the copartnership thereto. Of course, if the original note was not delivered under the circumstances of the case it could not be claimed that there was a delivery of the copy retained by plaintiff. When the court found nondelivery of the original note it followed as a matter of law that the note was invalid and that judgment must be entered for defendants regardless of whether the plaintiff had rendered valuable services for defendants or whether defendants had paid him therefor.

With respect to whether the California decision is conclusive upon this court in a different cause of action arising out of the same transaction we have adopted the language laid down in 34 C.J. 909 to the effect that:

'The rule is often stated in general terms that a judgment is conclusive not only upon the questions actually contested and determined, but upon all matters which might have been litigated and decided in that suit; and this is undoubtedly true of all matters properly belonging to the subject of the controversy and within the scope of the issues, so that each party must make the most of his case or defense, bringing forward all his facts, grounds, reasons, or evidence in support of it, on pain of being barred from showing such omitted matter in a subsequent suit; and it is also true that where the second suit is upon the same cause of action all matters which might have been litigated are conclusively settled by the judgment; * * * But the weight of authority is that where the second action, although between the same parties, is on a different cause of action, the judgment is not conclusive on all matters which might have been litigated in the former action, but only as to such points or questions as were actually in issue and adjudicated thereon. ' (Emphasis supplied.) Fischer v. Hammons, 32 Ariz. 423, 430, 259 P. 676, 678 (1927).

Our Rule 18(a) insofar as here pertinent provides that:

'The plai...